' This judgment will dispose of Civil Revisions Nos. 514, 515, 517, 518, 519, 520 and 521 of 1972 as they raise common question of law and facts.
2. The petitioners were claimant displaced persons holding verified claim of agricultural land abandoned in India. On 16-2-1968 the petitioner filed a suit for possession. The facts as disclosed in the plaint were that the predecessor-in-interest of the respondents Ch. Ghulam Din also belonged to the same village in India to which the petitioner belonged and alter the Partition had settled in Chak No, 325/E. B., Tehsil Vehari, District Multan (now District Vehari). As some land had been allotted against a claim but the remaining units remained unutilised, therefore, the plaintiff approached the aforesaid Ch. Ghulam Din for help in the matter of allotment. The allegations are that the alone said Ch. Ghulam Din got the land allotted against the unutilised units and thereafter got the land mutation by producing fictitious person in the name of his sons who are now respondents. According to the petitioners they had not received even the consideration amount and that this transfer was made fraudulently. The petitioner had filed an appeal against the fraudulent transfer of the land which was made on 10-12-1956 (Exh. P. 3) which was accepted by the Consolidation Officer/ D. R. O. On 2-12-1959 (Exh. P/6). The Additional Rehabilitation Commissioner accepted the revision filed by the respondents on 16-6-1964 (Exh. D/4) was dismissed by the Board of Revenue on 27-11-1965 (Exb. D/2), as being incompetent. The suits filed by the petitioner were contested by the heirs of Cl. Ghulam Din who raised several objections including the lack of jurisdiction of the civil Courts as well as the limitation. On merits it was claimed that no fraud had been committed and the petitioners had themselves appeared and transferred the land for valuable consideration. The learned trial Court framed the following preliminary issues
(1) Whether civil Court has no jurisdiction to entertain the suit ? 0. D. --(2) Whether the suit is time barred ? 0. D.
(3)Whether the valuation of the suit for purposes of court-fee is correct. If not what is the correct valuation ? 0. D.
(4)Whether defendants Nos. 3 to 6 are not necessary parties to the present proceedings ? 0. D.
(5)Whether application under Order XXXII, C. P. C. Has been filed along with the plaint, if not its effect ? 0. P.
(6)Whether the description of the suit land is not correct. If so with what effect ? 0. D.
3. The learned trial Court decided the Issues Nos. 1 and 2 against the petitioner/plaintiff and Issues Nos. 3 to 6 as having been not pressed. The suits were dismissed by judgment and decree of the learned Civil Judge Vehari, dated 3-6-1971. Seven appeals were filed and disposed of by the learned Additional District Judge, -Multan by one single judgment dated 1-2-1972 and the findings of the learned trial Court were upheld.
4. The learned counsel for the petitioner has argued that the findings of the learned Courts below on Issues Nos. 1 and 2 cannot be legally sustained. As regards the jurisdiction it is submitted that a bare perusal of the plaint would show that in the plaint no order passed by the Settlement authorities had been challenged. As regards the limitation it was pointed out that this being a suit on the basis of the title was governed under Article 144 of the Schedule to the Limitation Act or in the alternative even if the suit may be treated as one for declaring the orders of the revenue Courts to be illegal the limitation would start from the last order passed in the hierarchy. So far as the question of jurisdiction is concerned it is an established proposition of law that in order to see whether the civil Courts had jurisdiction to try a suit the averments contained in the plaint without adding a single word A by way of defence ought to have been taken into consideration. Reliance in this behalf may be placed on Mst. Zainab v. Fazal Dad (1) wherein it was) observed as under : "4. The learned counsel for the appellants contended that the jurisdiction of the Court is determined with reference to the allegations made in the plaint and not on the pleas put forth by the defendants. The suits were instituted only on the basis of title and there the plaintiffs did not at all allege that the defendants were their tenants looking at the allegations in the plaint there can be no doubt whatsoever that the civil Court had the jurisdiction to try these cases because it is a well-established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up. In Cheta v. Baija and others AIR 1927 Lah. 452 it was held that in order to ascertain the nature of a suit the general rule is that the allegations in the plaint must, primarily, be looked to and that these allegations govern the question of jurisdiction. The same view was affirmed in Baru and others v. Naidar and others AIR 1942 Lah.
217. It was also held in Muhammad Yusuf v. Nek Muhammad PLD 1955 Lah. 183 that the jurisdiction of a Court is determined not by pleas of the defendant but by the allegations in the plaint. As indicated above, the plaintiff's suits, according to the allegations in the plaint, were only for the recovery of the possession of the land in dispute on the basis of title as owners of the land, the defendants being treated as trespassers. Their suits were against the defendants not as the tenants but as trespasser. Prima facie, therefore' the suits were cognizable by a civil Court."
5. All the plaints in the suits filed by the petitioner were cyclostyled and contained similar averments with the exception of the dates of the mutation and a few other necessary particulars. A bare perusal of the plaints would show that no order passed by the Settlement Authorities was challenged. The case of the plaintiff, as already indicated above, was to the effect that the petitioner had sought assistance from Ch. Ghulam Din in respect of his unsatisfied claim who first got the property transferred from the Rehabilitation Department in the name of the petitioners and thereafter got the land mutated in favour of his sons by producing fictitious persons. According to the petitioners the mutations made after the transfer were based on fraud were illegal and without consideration. The petitioners claimed that they had only come to know from the record of the Patwari that Martial Law authorities had called the displaced persons in connection with the scrutiny of the allotted lands. No order of the Settlement authorities having been challenged the jurisdiction of the civil Courts was not barred. It would be interesting to point out that the reason for holding that the civil Courts did not have the jurisdiction ; the learned Additional District Judge pointed out because the settlement fee had not been paid at the time of the institution of the suits thereby suggesting that the property was in the compensation pool. The relevant observations of {{FOOT NOTE}}
(1) PLD 1966 Lah. 1050 {{FOOT NOTE}} ' the learned Additional District Judge may be quoted below for the sake of convenience : "The learned counsel for the parties admitted during the course of arguments that the settlement fees was not paid at the time of the institution of the suit in the year 1970."
' It was after this observation that the principle laid down in Mst. Habib Khatoon v. Sardar Muhammad (1) was applied to the facts of the present case. It was held that the jurisdiction of the civil Court was based. As regards limitation it was observed that the mutations having been sanctioned on 10-12-1956 the suits filed on 16-9-1968 were barred by time as according to the Courts below the plaintiffs had come to know of the mutations in 1959.
6. To my mind both the learned Courts below have not examined the case in its true perspective as regards jurisdiction as well on the ground of limitation. The learned counsel for the respondents in order to exclude the jurisdiction of the civil Court relied on the same line of arguments adopted by the learned Additional District Judge and also relied upon paragraph 14 of Part I, Chapter 2 of the Rehabilitation Scheme, 1956 and section 6 of the Displaced Persons (Land Settlement) Act, 1958.
The respondents reliance on paragraph 14 cannot be said to advance their case. In case the settlement fee had not been paid to the property was still in the compensation pool, paragraph 14 of the Rehabilitation Scheme prohibited such a sale and the transactions made were void, and were simply to be ignored. For the sake of convenience paragraph 14 is reproduced below : "14. The allottees concerned may transfer by sale, exchange, gift, will, mortgage or other private contract their rights or interests in the land allotted to them under the Rehabilitation Settlement Scheme except where- (a)the allottee concerned has not made full and final settlement of any Government dues, including the Rehabilitation fee ; (b)the land held by the allottee concerned is the subject-matter of any appeal, ,revision or review before a Rehabilitation Authority ;
(c) the land has been allotted in lieu of rights of as mortgagor or mortgagee till such time as the allottee concerned has fulfilled the terms and conditions contemplated to be prescribed in regard to such cases ; (d)the land has been allotted provisionally on the basis of a certificate issued by the Central Record Office in accordance with Paragraph 19, Chapter 1, Part II of the Rehabilitation Settlement Scheme : ' Provided that if the allottee-alienor is subsequently found to have obtained the allotment of land by fraud or by misrepresentation the alienation will be deemed to be void.
(2) Such alienation will only be entered in the cultivation column of the revenue records the implication being that the land will continue to be evacuee property even after alienation."
7. As already indicated above no order of the Settlement Authority had been challenged and as such keeping in view the averments contained in the plaint jurisdiction of the civil Courts was not barred. Reliance in this behalf may be placed on Mst. Ghulam Fatima v. Muhammad Hussain (2) . In this case the question involved was whether the Settlement Authority could determine the question of succession to the estate of confirmed allottee and, {{FOOT NOTE}}
(1) PLD 1970 SC 162 (2) PLD 1976 SC 729 {{FOOT NOTE}} ' in this behalf it was held that under section 25 of the Displaced Persons (Land Settlement) Act (XLVII of 1958), the jurisdiction of the Civil and Revenue Courts was not barred to decide a claim merely for its being related to a property not permanently settled on allottee under the Act. The bar of jurisdiction was only confined to matters with the Central Government or an Officer appointed under the Act was empowered by or under that Act to determine. In the present case the question whether the mutation got made in favour of the respondents by Ch. Ghulam Din it was only the civil Court who had the jurisdiction to determine. The relevant observations of their Lordships of the Supreme Court may be quoted below : "The jurisdiction of the civil and Revenue Courts is barred under section 25 of the said Act in only two situations. It is excluded firstly `in respect of any action taken or to be taken under this Act and it is excluded secondly in respect of any matter which a settlement authority "is empowered by or under this Act to determine". There is no ambiguity about the bar in the first of these two situations.
If an order has been passed by a settlement authority, 'that is the end of the matter provided it is 'in exercise of any power conferred by or under this Act'. What is important to us that such an order cannot be challenged in the civil or revenue Courts on the ground that is erroneous and a declaratory suit to challenge it on the ground of error is barred. Next, as to the other bar to the jurisdiction of the civil and revenue Courts, it is confined to matters which the Central Government or an officer appointed under this Act is empowered by or under this Act to determine". There is no ambiguity about these words which mean and imply that the civil and revenue Courts are not divested of their jurisdiction to decide a claim merely because it relaes' to property which has not been permanently settled on the allottee under the said Act. Therefore, as the respondents were the petitioners in the High Court, they had to show that the mutation sought by the appellant was an attempt to challenge an order of the Settlement Authorities, or that the question of the succession to the estate of Shahabuddin deceased was a matter which the Settlement Authorites were empowered to decide under the said Act."
8. Reliance on paragraph 14 by the learned counsel for the respondents would not help as in case the settlement fee had not been paid the property could not be transferred in favour of the respondents or that would be the more reasons why the mutations in favour of the respondents be declared to be illegal and void. In any case it does not create a bar to the jurisdiction of the civil Court to determine the matter in dispute.
9. The learned counsel for the respondents further submitted that the law relating to the jurisdiction was made clear only in the above judgment and before that there was no proper enunciation of law and as such the matter should be decided in terms of law as declared at the time of filing of the suit and the effect of extending of law relating to jurisdiction should not be applied to the present case and reliance in this behalf has been placed on Mst. Sughran v. Rehmat All (1). In this case it was held that the land acquired by the Government under section 4(3) continues, even after acquisition, to be evacuee property and the question of inheritance to right of allotment held by the deceased was within the exclusive jurisdiction of Rehabilitation Authorities and as such the jurisdiction of the civil Court {{FOOT NOTE}}
(1) PLD 1965 Lab. 580 {{FOOT NOTE}} ' was barred. It was further observed that the civil Courts were not competent either directly or indirectly to adjudicate any matter in respect of an evacuee property. Even this authority nowhere lays down that after the allotment any in case the sale is made fraudulently in favour of a third person the same cannot be challenged in the civil Courts. The contention of the learned counsel or the respondents that the law as was prevalent at the time of filing of the civil suit does not apply to the facts of the present case. For what has been stated above I hold that the jurisdiction of the civil Court was not barred in the present case on the bare reading of the plaint.
10. The question of limitation was not seriously contested by the respondents. Admittedly the suit had been filed within 12 years of the fraudulent allotments and within three years of the last order passed by the Board of Revenue. In the case reported as Abdur Rahman v. Abdul Haq (1), it was held by Mr. Justice S Anwarul Haq, now my Lord, the Chief Justice of Pakistan, as in a case where contract of sale had been made by a minor and as such was void. It was held that the suit filed for possession was governed under Article 144 and not Articles 91 and 120 of the Schedule to the Limitation Act. The relevant observations may be quoted below "On a consideration of the arguments advanced by the learned counsel and the authorities cited by him, we have come to the conclusion that the present is not a case where Article 91 or Article 120 of the Limitation Act would apply. The sale deed Exh. 87 excluded by Mst. Arbab Khatun is null and void for the reason that at the time of its execution, i,e,, on 29-7-1935 she was a minor, being less than sixteen years of age, and therefore, incompetent to contract. There was no need for filing a suit for the cancellation or setting aside of the sale deed in question, and in effect the suit of the plaintiff was not one for such cancellation or setting aside of the instrument in question. The sale deed does not exist in the eyes of law and accordingly the claim for possession has to be judged independently of the sale deed. Clearly the period of limitation in such a case would be governed by Article 144 of the Limitation Act, provided that there was dispossession of the plaintiffs in pursuance of the sale-deed which we have declared to be null and void."
' As the sales made at the time when the permanent settlement had not been taken jplace were void as per paragraph 14 quoted above and therefore, the principle as laid down in the above judgment would be on all fours E applicable to the facts of the present case. Even if the case may be treated as falling 'under Article 120 for the reason that the petitioners had been F pursuing their remedies before the Settlement Commissioner/Revenue Authorities the limitation would start from the date of the last order passed by the Board of Revenue. In cases where Article 120 is applicable their Lordships of the Supreme Court in F. A. Khan v. Government of Pakistan (2) have held that a declaratory suit may be filed within 6 years from the date of decision by the Appellate Authoriry. In this case a Government servant had filed a declaratory suit in a civil Court within 6 years from the date of decision by the appellate Authority. It was held by their Lordships of the Supreme Court that passing of an order which was subject to appeal will not necessitate filing of a suit for it is only a part of proceeding and not a final order. In any case once an appeal is filed the matter becomes sub judice and when the Appellate authority passes an order the order of the {{FOOT NOTE}}
(1) PLD 1960 Kar. 625 (2) PLD 1964 SC 520 {{FOOT NOTE}} ' original authority disappears and merges' in the order of the Appellate Authority so that there remains in existence only of the appellate order this order can be made the basis of a suit. In this case also the limitation was governed under Article 120 of the Schedule to the Limitation Act. In another case reported as Jumman Khan v. Muhammad Khan (1), their Lordships of the Supreme Court have observed for the purposes of Article 120 a fresh cause of action would accrue every time their right of ownership was denied or repudiated: In that case on 4-2-1949 the petitioner had acknowledged the ownership rights of the respondents. Munation was not entered by the respondents on the basis of the agreement, but it was rejected on 11-9-1954. The suit which was filed on 13-11-1956 was held to be within Article 120 or 142 of the Limitation Act.
11. In the light of the above discussion I hold that in the present case neither the jurisdiction of the civil Court was barred nor the suits were barred by time, therefore, I set aside the judgment and decree of the learned Additional District Judge, Multan, dated 1-2-1972 and that of the learned Civil Judge, Vehari, dated 3-6-1971 and remand all the cases to the learned trial Court for decision on merits. There will be no order as to costs.
(1) 1975 SCMR. 289